And while commentators may continue to debate the merits of the court’s ruling, almost all agree that it provides little in the way of practical guidance for the next teacher or administrator who has to make an on-the-spot disciplinary decision about drug- or alcohol-related student speech. In fact, if anything, the decision appears to make the boundaries between protected speech and punishable speech even less clear than before.

Prior to Morse, there was a reasonably clear bright-line test: Student speech that was disruptive or lewd could be punished, while other speech could not. Now, even First Amendment scholars are unsure how courts will treat the great majority of student speech that mentions drugs or alcohol.

The problem lies in differentiating speech that a school official may “reasonably regard as promoting illegal drug use” from speech that “can plausibly be interpreted as commenting on any political or social issue” (including “the wisdom of the war on drugs or of legalizing marijuana for medicinal use”). According to the majority opinion, written by Chief Justice John G. Roberts Jr., speech in the first category may be punished. But, in a concurring opinion, Justices Samuel A. Alito Jr. and Anthony M. Kennedy said that speech in the latter category is constitutionally protected. Because Justices Alito and Kennedy’s votes were necessary to form the majority, their caveat to the Roberts opinion is the controlling legal rule.

In the abstract, dividing drug-related speech into these two categories might seem like reasonable compromise. Unfortunately, as educators well know, in the real world rarely is speech as black and white as “Bong Hits 4 Jesus” (punishable) or “Legalize Bong Hits” (not punishable). A sizable portion of student speech related to drugs or alcohol, if not a majority, could be placed in both categories: possibly promoting drug use and plausibly commenting on a political issue. More importantly for purposes of potential legal liability, instances of speech that is completely devoid of any plausible political or social commentary, such as the “Bong Hits” banner, are likely to be exceedingly uncommon.

Take, for example, the statement “I encourage anyone who has cancer to use marijuana because it has medicinal value and, as an added bonus, it may get you high.” It certainly promotes the use of an illegal drug. It is equally difficult to dispute, however, that the statement also comments on a political and social issue. Ironically, even a more outlandish phrase like “Bong Hits 4 Justice Roberts” would almost surely be protected speech, as a political criticism of the court’s decision.

So, how are school officials supposed to determine when drug- or alcohol-related speech may plausibly be viewed as offering political commentary? Especially when the mistake of failing to recognize the “plausible” political or social dimensions of a phrase may open you up to a lawsuit. Regrettably, neither the majority nor concurring opinion offers even the most basic direction or advice.

In determining how to treat student speech about drugs in the aftermath of the “Bong Hits 4 Jesus” case, then, school officials who wish to avoid legal hassles would be wise to err on the side of caution and restrict speech in only the clearest circumstances.

On the bright side, this approach isn’t just prudent as a legal matter, it also makes for good policy. This is because we will never be able to stop drug abuse without listening to the unvarnished views of students.

Drug policies have a more direct and personal effect on students’ daily lives than perhaps any other national policy issue. Beginning in elementary school, students are taught about controlled substances through the zero-tolerance approach of the DARE program, or Drug Abuse Resistance Education, which is used by 80 percent of all public schools. In high school, nearly one-quarter of all students are given drug tests in school, according to the Institute for Social Research at the University of Michigan. After graduation, students who have abused drugs and hope to turn their lives around by going to college may be denied federal financial aid if they are convicted of a drug offense, under the controversial drug provision of the federal Higher Education Act.

Students are also deeply affected by drug policies outside of school. Young people often experience disproportionate pain in seeing family members, friends, and classmates suffer from drug abuse. Mandatory-minimum- sentencing laws, for example, have a significant impact on the children of offenders, who are forced to grow up without one or both parents. In fact, 67 percent of incarcerated parents in the federal system are in prison because of a drug offense.

Because students are at the center of the nation’s discussion about drug policy, their interest in freely participating in the debate should be embraced and protected by schools, not stifled.

Because students are at the center of the nation’s discussion about drug policy, their interest in freely participating in the debate should be embraced and protected by schools, not stifled. So long as they are not disruptive or disrespectful, allowing students to openly express their views about drug abuse and drug policy (whatever those views are) is critical if we ever hope to solve the intractable problem of drug abuse.

After all, how can we accurately evaluate the success of our current drug policies, or search for new approaches, without allowing the people most directly affected to freely discuss and debate them?

No lesser authority than the 1990 National Commission on Drug-Free Schools recognized this key fact, explaining in its final report that it gave students’ views significant consideration because of the impact drugs have on them, and because “any effort to eliminate drug problems must have the cooperation and support of young people.”

Thus, even if the Supreme Court had sanctioned broad restrictions on student speech about drugs or alcohol as a constitutional matter, there would be important policy considerations weighing against their implementation. As things stand, though, school officials arguably have an even more important reason for continuing to step lightly in the area of student speech about drugs and alcohol: staying out of court.

Alex Kreit is a visiting assistant professor at the
Thomas Jefferson School of Law, in San Diego,
and was a co-author of a friend-of-the-court brief
in support of Students for Sensible Drug Policy
(www.ssdp.org) in the “Bong Hits” case.

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